Dance and Profit: Who Gets It?

Published: September 20, 2003

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"I think that artists always have been able to, and still are able to, make that decision," Mr. Preston said. "I believe that Martha did know and did make a choice. She did it with her eyes wide open. She did it with the advice and carefully sought counsel of her C.P.A. and she had very powerful attorneys and other people on her board who chatted with her about it. She articulated both to her mother and in other legal documents a full comprehension of exactly what she was doing. And what she was doing was not bad. It was intensely rational.

"The work-for-hire doctrine has been there for a very long time and affects all artists. And artists have a variety of ways of dealing with it. People need to say, `How do we, the board of directors and the artist, jointly want to address this?' The law doesn't limit what you can do. It merely defines what the choices are."

The battle between Mr. Protas and the center, the umbrella organization of the Graham company and school, became public in May 2000 when the company suspended operations because of financial problems. The suspension followed a yearlong feud that resulted in Mr. Protas's dismissal from the Graham board and in his refusal, as the head of the Graham Trust, which licensed her dances, to permit the company to perform the works.

Mr. Protas went to court to challenge the center's right to Graham's name, technique and dances. In last year's decision, Judge Cedarbaum ruled that the rights to all dances created before 1956 were transferred when Graham sold her school to the foundation. The judge ruled that the center also owned the dances created after 1956 because Graham had effectively become its employee, and therefore she did not own and could not bequeath her dances to Mr. Protas.

One piece of evidence submitted by the center was a letter Graham wrote to her mother. It is undated but appears to have been written in 1956. Responding to her mother's fears about her daughter's financial situation, Graham wrote: "The Foundation has made a legal arrangement with me by means of which they `buy' the school and my name. This is not frightening at all and has no fears attached. It simply means that the Foundation agrees to pay me for that name, etc., a certain sum."

The arrangement meant that "I shall have a salary over the years regardless of the intake of the school," Graham continued, adding that she did not entirely understand "the tiresome legal matters" and did not expect her mother to, but that she trusted her lawyer. "There is not much more money availabel," she wrote, "but there is much less worry and fear because it is well taken care of and the future is better arranged for than ever before."